Grafton v ABB Service Pty Limited

[2006] WADC 168

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   GRAFTON -v- ABB SERVICE PTY LIMITED [2006] WADC 168

CORAM:   EATON DCJ

HEARD:   17 FEBRUARY 2006

DELIVERED          :   17 OCTOBER 2006

FILE NO/S:   CIV 1779 of 2004

BETWEEN:   ALAN GRAFTON

Appellant/Plaintiff

AND

ABB SERVICE PTY LIMITED
Respondent/Defendant

Catchwords:

Appeal from a Deputy Registrar - Amendment of pleading - Workers compensation - Constitution of medical assessment panel

Legislation:

Workers' Compensation and Rehabilitation Act 1981
Workers' Compensation and Rehabilitation Amendment Act 1999

Workers' Compensation (Common Law Proceedings) Act 2004

Result:

Appeal allowed

Representation:

Counsel:

Appellant/Plaintiff        :     Ms H Prince

Respondent/Defendant   :     Ms P V Batros

Solicitors:

Appellant/Plaintiff        :     Chapmans

Respondent/Defendant   :     Phillips Fox

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Commonwealth v Verwayen (1990) 170 CLR 394

Craig v The State of South Australia (1994) 184 CLR 163

CSR Ltd v The Medical Panel, unreported; FCt SCt of WA; Library No 9097; 11 October 1991

Dowler Princes Securities Pty Ltd (1971) 1 SASR 578

Fremantle Foundry & Engineering Co Pty Ltd v The Medical Panel, unreported; FCt SCt of WA; Library No 9200; 17 December 1991

Ketteman v Hansel Properties Ltd [1987] AC 189

Maxwell v Murphy (1957) 96 CLR 261

Queensland v J L Holdings Pty Ltd (1987) 189 CLR 146

Re Government Railways No 1 Award [1918] AR (NSW) 213

Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549

Republic of Costa Rica v Erlanger (1876) 3 Ch D 62

Zollner Ltd v Municipal Council of Sydney (1917) 17 SR (NSW) 164

1. EATON DCJ:  By Writ of Summons filed on 12 August 2004 the appellant sued the respondent seeking damages for personal injuries caused to the appellant by the respondent on or about 22 September 1998.  The appellant filed a statement of claim on 11 November 2004.  The respondent filed a defence on 30 November 2004.  In brief, the respondent denied that it had been negligent and that it had breached any duty, statutory or contractual, owed to the appellant.  It alleged contributory negligence against him.

2. In his statement of claim, the appellant pleaded that on or about 29 September 1998, he was an employee of the respondent, being employed as a welder pursuant to a contract of employment.  On or about the day in question, the appellant said that when he was adjusting the size of a steel bench, a leg of the bench snagged on steel bars which had been concreted to the floor.  As a result, he wrenched his shoulder and neck and suffered injury.  His claim is that the respondent failed to provide him, inter alia, with a safe place to work.

3. The appellant alleges that on 21 June 2001, he suffered a second accident at work which involved a penetrating injury to the right eye and a soft tissue injury to the right leg.  He says that that second accident resulted also from the respondent's breach of duty.

4. On 3 June 2005, the respondent brought an application seeking leave to amend its defence by asserting further that the appellant had not satisfied the statutory thresholds for an award of damages imposed by s 93D(1) of the Workers Compensation and Rehabilitation Act 1991.  The respondent sought to particularise that claim by alleging that a purported determination of the appellant's degree of disability by a medical assessment panel on 17 March 2005 was of no effect because that panel was not constituted in accordance with s 145C of the Act and was therefore not a medical assessment panel within the meaning of the Act.  That application came before Registrar Kingsley who heard argument from counsel for both parties on 11 August 2005.  On 18 October 2005 he gave judgment, allowing the proposed amendment in part.  The extent of the amendment for which leave was granted allowed the respondent to amend its defence to make the claim concerning the medical assessment panel outlined above.

5. On 19 October 2005 the appellant filed notice of appeal from the judgment of Registrar Kingsley seeking to set aside the orders made by him and seeking orders, in lieu thereof, that the respondent's application for leave to amend its defence be dismissed with costs.

6. By O 21, r 5 the Court may at any stage of proceedings allow any party to amend a pleading on such terms as to costs or otherwise as may be just and in such a manner as the Court may direct.

7. The District Court Rules 2005 came in to operation on 30 May 2005.  The transitional provisions (r 73) provide that in respect of an action commenced before the commencement of the new rules, if an appearance was entered before that date, the District Court Rules 1996 continue to apply.  Accordingly, those rules govern this appeal.  They provided that a person effected by a judgment, order or decision of a Registrar might appeal to a Judge in chambers.  Such an appeal is a complete review de novo to be dealt with by way of a re‑hearing of the application. 

8. Part IV Division 2 of the Workers Compensation and Rehabilitation Act 1981 provided for constraints on awards of common law damages and applied to the awarding of damages against an employer independently of that Act in respect of a disability suffered by a worker if the disability was caused by the negligence or other tort of the worker's employer and compensation had been paid or was payable in respect of the disability under the Act.  It provided that the provision applied even if damages resulting from the negligence or other tort of the worker's employer were sought to be recovered in an action for breach of contract or other action.  If the division applied, a court was not to award damages to a person contrary to its provisions.  In particular, it provided that damages could only be awarded if it was agreed or determined that the degree of disability claimed was not less than 30 per cent.  In the absence of agreement, the question of percentage disability was to be determined by a medical assessment panel.  Section 5 of the Act defined a medical assessment panel as one constituted under Part XII which part dealt with medical assessment panels.  Between 1993 and 1999 s145C(2) provided that, of the members of the medical assessment panel, at least one was to be a general practitioner.  In October 1999 Part XII of the Act was amended to delete the requirement that membership of the medical assessment panel, comprise at least one general practitioner.  It is common ground that the medical assessment panel when it made its determination with respect to the appellant in March 2005, did not have a general medical practitioner as a member of the panel, it being comprised of three medical specialists.

9. Counsel for the appellant submitted that the amendment allowed by Registrar Kingsley had no prospect of success.  It is the case that the Court should not grant leave to amend a pleading into a form which ought to be struck out or which does not disclose a good defence.  It is also the case that the Court should not grant leave to a party to make a defective amendment.

10. Counsel for the appellant, in her written submissions, submitted that the medical assessment panel was properly constituted within the provisions of s 145C of the Workers' Compensation Act 1981 (as amended) in its terms operational on 17 March 2005.

11. Following the hearing I requested that counsel provide me with further written submissions as to the applicability or otherwise of the provisions of the Workers' Compensation (Common Law Proceedings) Act 2004. That Act sought to give effect to the intention of Parliament when it enacted s 32 of the Workers' Compensation and Rehabilitation Amendment Act 1999 and to ensure that workers are not disadvantaged by the effect of certain decisions of the Supreme Court in relation to the operation of s 93D of the Workers' Compensation and Injury Management Act 1981. Section 5(1) and (2) are deemed by the Act to have come into operation on 5 October 1999. The term "amended provisions" in that Act means ss 93A to 93G of the Workers' Compensation and Rehabilitation Act 1981 as amended from time to time.  Section 5(2) provides that the amended provisions apply to and effect the awarding of damages in a proceeding and the former provisions do not apply to or effect the awarding of damages in a proceeding unless it is a proceeding commenced before the assent day or for the commencement of which a court gave leave under the former provisions before the assent day.  The assent day is 5 October 1999.

12. Section 5(3) provides that the amended provisions do not apply to or affect the awarding of damages in a proceeding and the former provisions apply to and affect the awarding of damages in a proceeding that is a proceeding commenced on or before the Workers' Compensation (Common Law Proceedings) Act 2004 received royal assent with the leave of the Court under the former provisions or for the commencement of which a court granted leave under the former provisions on or before the day on which the Act received royal assent.  The Act received royal assent on 25 October 2004.

13. The plaintiff commenced action in this Court by Writ of Summons filed on 12 August 2004 having been given leave to issue proceedings against the defendant on 10 August 2004.  It follows that this is a proceeding which was commenced before the day on which the Workers' Compensation (Common Law Proceedings) Act 2004 received the royal assent with the leave of a court under the former provisions. That being the case, under s 5(3) of the Act the amending provisions do not apply to or affect the awarding of damages and the former provisions apply to and affect the awarding of damages.

14. Counsel for the defendant submits, in written submissions, that the medical assessment panel had no jurisdiction at all because it was improperly constituted contrary to the provisions of s 145C(2)(b) because the panel did not contain a general practitioner.

15. It is very clear that the phrase "former provisions" has, for the purposes of the Workers' Compensation (Common Law Proceedings) Act 2004, the same meaning as in s 32(6) of the 1999 Act. In that Act that phrase means Pt IV Div 2 of the principal Act before it was amended by s 32 of the Workers' Compensation and Rehabilitation Amendment Act 1999.  Part IV Div 2 provides for constraints on awards of common law damages, currently comprising ss 93A to 93S of the Workers' Compensation and Injury Management Act 1981.

16. Section 6 of the Workers' Compensation (Common Law Proceedings) Act 2004 provides that existing determinations remain unaffected. That section became operative on 4 January 2005. The determination of the medical assessment panel in this matter was made on 17 March 2005. Under s 6 a "determination" includes a decision, ruling, order, award, judgment, settlement or agreement but does not include a determination in respect of a proceeding referred to in s 5(2)(c) or (d). The action brought by the plaintiff is not a proceeding referred to in s 5(2)(c) or (d).

17. Section 6(2) of the Act provides that where a determination was given, made or registered after the assent day on the basis that the amended provisions and not the former provisions applied, the fact that the determination was given, made or registered on that basis is not a reason for:

    "(a)the determination to be rescinded, set aside, altered or amended;

    (b)the determination to be subject to appeal, review or challenge in any way; or

    (c)the worker to be entitled to any further payment under the provisions of the Workers' Compensation and Injury Management Act 1981 or any other law, written or unwritten."

18. Section 6 provides that no determination given, made, or registered after the assent day is invalid or less effective by reason that it was given, made or registered on the basis that the amended provisions, and not the former provisions applied.

19. In my view the decision of the medical assessment panel on 17 March 2005 was a determination within the meaning of that term in s 6 of the Act. It was a determination given after the assent day on the basis that the amended provisions and not the former provisions applied. As such, the fact the determination was made on that basis is not a reason for challenge to it "in any way".

20. The Workers' Compensation and Rehabilitation Amendment Act 1999 amended s 145C of the principal Act by repealing the existing subsection (2) and substituting a provision that required that, of the members of the panel, at least one is to be a specialist in the particular branch of medicine or surgery that is relevant to the question. It does seem to me that the determination of the medical panel was given after the assent day on the basis that the amended provisions and not the former provisions applied and, in consequence of s 6 of the Workers' Compensation (Common Law Proceedings) Act 2004, that being the case, the making of the determination on that basis is not a reason for challenge in any way.

21. In response to my request for submissions as to the effect of the Workers' Compensation (Common Law Proceedings) Act 2004 the appellant's supplementary submissions conclude that the Act has no relevance to the appeal "as they dealt with difficulties that arose with plaintiffs seeking leave under the 'old system' rather than the 'new system', and as indicated above, the medical assessment panel was consequent upon a properly constituted referral by the director/review officer which in turn was consequent upon a properly lodged Form 22."

22. The respondent's supplementary submissions contend that s 5(3)(b) and (d) of the Workers' Compensation (Common Law Proceedings) Act 2004 do apply to the action meaning that the amended provisions do not apply to or affect the awarding of damages in the action. The respondent contends that the plaintiff therefore could not lawfully have his degree of disability assessed in accordance with the amended provisions. In my view it is clear that the determination was made on the basis that the amended provisions and not the former provisions applied. The medical assessment panel was constituted accordingly. Its determination cannot, therefore, be challenged.

23. The respondent's original application was to amend in accordance with a Minute of Proposed Amended Defence dated 30 May 2005.  The proposed amendment was par 13.  Registrar Kingsley concluded that he should allow the amended pleading other than par 13.1.3.

24. The Notice of Appeal which was filed by the appellant seeks orders that the order of Registrar Kingsley made on 18 October 2005 whereby the defendant was given leave to amend its defence in terms of par 13.1.1 and 13.1.2 in the Minute of Proposed Amended Defence dated 30 May 2005 be set aside.  In lieu thereof the appellant sought orders that the respondent's application by summons filed 13 June 2005 be dismissed and that the respondent pay the appellant's costs of the application and of the appeal.  In my opinion the appeal, for the reasons given above, should succeed.  It does seem that there should be orders in terms of those proposed by the appellant in his Notice of Appeal.  I will hear counsel as to the precise terms of orders to be made and as to the question of costs.